Right of publicity not absolute; celebrity names, images can be used for news, satire, parody and art: Delhi High Court

The Delhi High Court on Wednesday held that use of celebrity names and images for the purposes of lampooning, satire, parodies, art, scholarship, academics, news and other similar uses is permissible as facets of the right of freedom of speech and expression under Article 19(1)(a) of the Constitution..Justice Amit Bansal said in his judgment,"In my opinion, use of celebrity names, images for the purposes of lampooning, satire, parodies, art, scholarship, music, academics, news and other similar uses would be permissible as facets of the right of freedom of speech and expression under Article 19(1)(a) of the Constitution of India and would not fall foul to the tort of infringement of the right of publicity.".The Court added that such use would not fall foul of the tort of infringement and the right to publicity, which is anyways not an absolute right in India, is subservient to the Article 19.“The extent of right of publicity also has to be considered in the context of the ‘right to freedom of speech and expression’ protected under Article 19(1)(a) of the Constitution of India. Even if the right of publicity were to be considered to be an absolute right in India, it still must be subservient to Article 19(1)(a) of the Constitution of India,” the court held.However, the Court clarified that where the identity or image of a celebrity is used to promote the sale of a product or a service or to show its endorsement by the celebrity or an association with the celebrity without their consent, it would amount to misrepresentation and cause likelihood of confusion in the market.“In such cases, consumers would be misled into believing that a celebrity is endorsing the defendant’s goods/services or is otherwise associated with them. This would result in infringement of the right of publicity of the celebrity. In other words, there has to be misappropriation of goodwill and reputation of a celebrity in selling a good/service. The right of publicity cannot be infringed merely on the basis of a celebrity being identified or the defendant making commercial gain.”.The Court made the observations while dealing with a suit filed by a Singapore-based company named Digital Collectibles and some cricketers like Mohammed Siraj and Arshdeep Sngh.Digital Collectibles carries its business worldwide and in India under the trade name Rario. Rario’s business includes creation of an online marketplace where third-party users sell, purchase and trade officially licensed “Digital Player Cards” of cricketers include Singh and Siraj.The Court was told that Digital Player Cards on Rario use the name and photograph of the players and other aspects of their personalities referred to as “Player Attributes”. By virtue of Player Services Agreements, the cricketers have duly licensed and authorized Rario to exclusively use their names and photographs on the Rario website, it was stated.The plaintiff said that its business model requires that its Digital Player Cards be technologically capable of being identified and distinguished as authentic and original in the online marketplace. These cards function as Non-Fungible Tokens (NFTs) and are capable of being sold, purchased and traded for real money on the Rario website.Rario alleged that online fantasy sports (OFS) platforms MPL and Striker are minting and distributing NFTs which capture images of players with whom Rario has entered into exclusive license agreements.It claimed that the acts of MPL and Striker of launching this business of NFTs for those players amounted to infringement, passing off, breach of the right of publicity and unfair competition. It, therefore, sought an interim injunction restraining them from doing the same..After considering the case, Justice Bansal held that online fantasy sports platforms can use names or images of celebrities and cricketers since such use is protected under the right to freedom of speech.“In my considered view, the use of the name and/or the image of a celebrity along with data with regard to his on-field performances by OFS platforms is protected by the right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India. It is a settled position of law that protection under Article 19(1)(a) extends to commercial speech as well. Therefore, even if the defendants are using players’ names, images and statistics for commercial gain, this would be protected under Article 19(1)(a) of the Constitution of India,” the judgment said.It added that facts which are available in the public domain such as match information cannot be monopolized, and even if a third-party were to publish such information for commercial gain, no actionable right arises in favour of the plaintiffs.“If the name or image of a player can be used in an ordinary OFS game for descriptive or nominative purposes, there is no reason as to why it cannot be used for the same purposes on a Digital Player Card. Therefore, in my considered view, there is no difference between an OFS game with NFT enabled Player Cards and an ordinary OFS game insofar as use of the name or artistic impression/photograph of a player is concerned.”.The Court also rejected the contention that by using the name and artwork of a player’s image/photograph on their cards, the defendants are unjustly enriching themselves at the expense of the sportsperson concerned.The Bench observed that sportspersons are being rewarded handsomely by their participation in the games, as also through endorsements and sponsorship arrangements.In the context of the present case also, it is a known fact that Indian cricketers earn huge amounts through Indian Premier League auctions, BCCI contracts, match fees, besides various brand endorsements and other sponsorships, Justice Bansal said.He, therefore, refused to grant any interim injunction in favour of the plaintiff..Senior Advocates Sandeep Sethi and Rajshekhar Rao along with advocates Shwetasree Majumder, Aditya Verma, Prithvi Singh, Rohan Krishna Seth, Parkhi Rai and Rigved Prasad appeared for the plaintiffs. Senior Advocate Dayan Krishnan with advocates Raj Latha Kotni, Anuridh Ramanathan and Anoop George appeared for Galactus Funware Technology Private Limited (MPL). Senior Advocate Amit Sibal, with advocates Maanav Kumar, Tara Narula, Nupur, Bijaharini G, Rishab Sharma and Saksham Dhingra appeared for 'Striker'. Senior Advocate Akhil Sibal with advocates Aditya Gupta, Kruttika Vijay, Dhruv Garg, Utkarsh Srivastava, Rahul Bajaj, Sauhard Alung and Sanya Kumar appeared for the All India Gaming Federation (intervener).Advocates Abhishek Malhotra, Shilpa Gamnani and Nishtha Chaturvedi appeared for Winzo Games (intervenor). .[Read Judgment]